People v. Tanner

• Decision Date: 19 March 1992
• Citation: 582 N.Y.S.2d 641,153 Misc.2d 742
• Parties: The PEOPLE of the State of New York, Plaintiff v. John TANNER, Defendant.
• Court: New York City Court

Page 641

582 N.Y.S.2d 641

153 Misc.2d 742

The PEOPLE of the State of New York, Plaintiff v. John TANNER, Defendant.

Criminal Court of the City of New York New York County, Part AP17.

March 19, 1992.

Robert M. Morgenthau, Dist. Atty. (John Weiss, New York City, of counsel), for the People.

Robert M. Baum, The Legal Aid Soc., New York City (Susan Laskoff, of counsel), for defendant.

ROSALYN H. RICHTER, Judge:

Defendant is charged with Criminal Simulation (P.L. 170.45(2)) and Fraudulent Accosting (P.L. 165.30(1)). Defendant now moves to dismiss the complaint for facial insufficiency.

An information is facially insufficient unless it contains facts of an evidentiary character tending to support the charges. C.P.L. 100.15(3); People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986). An information must provide not only reasonable cause to believe defendant committed the charged offense, but must also contain non-hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof. C.P.L. 100.40(1)(b), (c); People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987).

The factual portion of the accusatory instrument reads as follows:

Deponent states that she is informed by John Seck, security investigator of Hardrock Cafe, that informant observed defendant displaying sweatshirts with the "Hardrock Cafe" insignia for sale for five dollars ($5.00) each, and that defendant was seated behind the table in which said shirts were displayed.

Deponent further states that she is informed by Mr. Seck that he is custodian of all sweatshirts bearing the "Hardrock Cafe" insignia; that Hardrock Cafe has exclusive rights to sell such property, and that the shirts which defendant was selling were counterfeit, in that the material, the logo, the tags, and the printing were altered and of lesser value than the "Hardrock Cafe" shirts for which Hardrock Cafe has exclusive rights.

Deponent further states that she is informed by Mr. Seck that defendant did not have permission or authority to alter, possess or sell counterfeit "Hardrock Cafe" shirts.

Defendant argues that the Hardrock Cafe shirts involved here are not the type of item that is covered by the criminal simulation statute. The courts are divided regarding the application of the criminal simulation statute to products that are designed to imitate modern commercially manufactured products. Compare People v. Thai, 143 Misc.2d 1096, 542 N.Y.S.2d 955 (Crim.Ct.N.Y.County 1989) (applying statute to wristwatches with a designer imprint) and People v. Hafif, 128 Misc.2d 713, 491 N.Y.S.2d 226 (Crim.Ct.N.Y.County 1985) (statute covers jewelry stamped as 14 and 18 karat gold) with People v. James, 79 Misc.2d 805, 361 N.Y.S.2d 255 (Dist.Ct.Nassau County 1974) (statute does not cover imitation Seiko watch). This court agrees with the analysis in Thai and Hafif and concludes that the criminal simulation statute covers the sweatshirts involved here.

Neither the language of Penal Law 170.45 nor the legislative history of the statute show that it should be restricted, as the court in James held, to antiques or other rare objects. Rather, the statute prohibits the making or alteration of any object so that it appears to have an "antiquity, rarity, source or authorship which it does not in fact possess." (Penal Law § 170.45(1).) In interpreting a statute, the court must assume "that the legislature did not deliberately place in the statute a phrase intended to serve no purpose." N.Y.Statutes section 98(b) (McKinney's Cons Laws of NY, Book 1 1988); People v. Cullen, 99 Misc.2d 646, 649, 416 N.Y.S.2d 1011 (Sup.Ct.Kings County 1979). If the statute were intended to apply only to antique and rare objects, there would have been no need to include the terms "source or authorship."

The purpose of the law, which is based on section 224.2 of the Model Penal Code, is to protect the buying public from deception and trickery. Thus, the statute, in essence, prohibits an individual from knowingly selling an object as genuine when it is really fake. The Hardrock Cafe in New York is part of an international chain of restaurants, which also sells clothing bearing its name and logo. The restaurant's name and logo are distinctive and as recognizable as other designer names, which have become identified with certain products, such as "Gucci" or "Cartier." Though the shirts may not have the same monetary value as a watch or a piece of jewelry, they have some worth because of their affiliation with the restaurant chain. Indeed, tourists regularly buy such items as a memento of their visit to the Cafe. By using the name and logo, the manufacturer of the sweatshirts sought to convey that these were authentic souvenirs even though this was not true. Such an attempt to imitate the "source" of an object falls within the confines of P.L. 170.45.

Defendant also argues that the complaint fails to establish an "intent to defraud" because it does not establish that he made any affirmative representation that the shirts were genuine. It is beyond dispute that an intent to defraud may be established by circumstantial evidence. See People v. Carey, 103 A.D.2d 934, 479 N.Y.S.2d 789 (3d Dep't 1984); People v. Ford, 88 A.D.2d 859, 861, 451 N.Y.S.2d 753 (1st Dep't 1982). The term defraud has been defined as "to cheat." 2 CJI (N.Y.) PL 170.45(2) at 1131 p. 413. The logical purpose of having the name and logo of the Hardrock Cafe printed on the sweatshirts is to lead potential buyers to believe that the items actually belonged to the restaurant chain. The defendant's selling of these items, which appeared to be something they were not, is sufficient to show that he was trying to cheat and thereby to defraud customers. See generally People v. Ramirez, 168 A.D.2d 908, 909, 565 N.Y.S.2d 659 (4th Dep't 1990). The motion to dismiss the criminal simulation count is denied.

Defendant also contends that the...